So here's us, on the raggedy edge.And the eyes they were / a colour I can't remember / which says more / from verse to verse— A.C. Newman, There are Maybe 10 or 12

June 9, 2010

Michael Geist & Tony Clement on Copyright Reform

Michael Geist, Canada’s most recognized expert in online rights, writes thoughtfully about the government’s proposed copyright reforms in The Tyee.

Mr. Clement, Loosen Those Digital Locks!
Unfortunately, the legal protection for digital locks — unquestionably the biggest and most controversial digital copyright issue — is the one area where there is no compromise. Despite a national copyright consultation that soundly rejected inflexible protections for digital locks on CDs, DVDs, e-books, and other devices, the government has caved to U.S. pressure and brought back rules that mirror those found in the United States. These rules limit more than just copying as they can also block Canadian consumers from even using products they have purchased.

Interestingly, on the same topic, I received a response to a note I sent to CBC Radio’s Spark about their coverage of the copyright act which seems to suggest that Tony Clement hasn’t read and certainly doesn’t understand the act that he’s rewriting.

“Well you see, you know I think I have to admit it probably runs afoul of the current law because the current law does not allow you to shift formats. So the fact of the matter is I have compact discs that I’ve transferred, I have compact discs from my children or my wife that I’ve transferred onto my iPod. None of that is allowable under the current regime,” Mr. Clement, a music buff who also legally purchases songs from iTunes to build a digital database that now stands at 10,452 songs.

The thing is, current copyright law in Canada explicitly allows the duplication of music for personal use. Section 80 of the current copyright act states:

The act is quite clear in providing the exemption, and provides it only for musical work[s] embodied in a sound recording. No such exemption is provided for video recordings or written works, though various court rulings have clearly extended the fair use doctrine to protect the latter. Photocopying portions of a book or magazine for research purposes has been explicitly recognized as legal by the Supreme Court while photocopying an entire novel for the purposes of reading it would likely be illegal.

Second, CRIA recently argued that the private copying right does not apply to copies made to personal computers. A review of the legislative history of private copying provides little support for this interpretation, however, as the statute was intentionally drafted in a technology neutral fashion such that it could be applied to new copying media, including computer hard drives.

but the senior minister seems to have missed that.

The new proposed copyright legislation—Bill C32—is being sold to the Canadian public as ‘making legal what most people are already doing’ while protecting the rights of content creators and owners. In fact, it does exactly the opposite by making it illegal to break what’s being referred to as “digital locks.” Since there’s no such thing as a digital lock, it’s reasonable to presume that the minister is using this as an analogy to refer to encryption or copy protection in almost any form.

Music CDs are essentially the only digital format that currently ships without any form of encryption. The Compact Disc was, in fact, the first mass produced and mass marketed type of digital media. While software had long been sold with various forms of copy protection ranging from serial numbers to old tricks like inserting known bad sectors into legal copies (illegal copies that didn’t match the known bad sectors would fail) Compact Discs had no such protection. The industry tried to introduce new formats to replace the Compact Disc—Audio DVD and SACD were the most notable attempts—but failed. With little noticeable difference in sound quality, consumers didn’t bite. Every format introduced since (including digital downloads of music) has included a digital lock in the form of content encryption. They’ve all been broken, but the locks are there nonetheless.

Because the copyright act explicitly allows the duplication of music, including format shifting, the new provisions of Bill C-32 give the Canadian Public nothing and, in fact, may take away some rights that aren’t explicitly codified. I keep Joss Whedon’s Firefly and Serenity on my laptop. I own the complete DVD set, but copied them—format shifting as Minister Clement would say—to make them easier to carry, and to serve as a backup copy protecting the original media.

Under the current copyright act this might be legal under the fair use doctrine, although it’s not explicitly legalized because its not a sound recording but a video recording the nobody’s lost anything here. It’s the same principle as copying my music for personal use: I just want to watch what I legally own in another format. What use is my iPhone if it doesn’t have Captain Tightpants and his crew on it?

Under Bill C-32 this would be illegal. The DVDs I copied them from were encrypted with a digital lock, and despite the fact that I bought them legally C-32 restricts my right to do what I did. It would require me to purchase them.

Tony Clement isn’t giving us anything, but he is taking something away. What annoys me most is that he doesn’t even seem to know this. I’d expect a senior minister to at least read and understand a piece of legislation before writing its replacement.